Exploring the Doctrine of Precedent

The doctrine of precedent is based on the principle of “stare decisis” that has permitted the judiciary to formulate rules characterised by certainty, consistency and predictability. According to this doctrine, the decisions of judges in senior courts are generally followed by judges in the same court of the lower courts. The condition for this to occur is that the cases have similar facts of the legal disputes and have same legal rules. Thus, the expectation of a binding precedent is to allow the judiciary to function with continuity. However, decisions at the same level do not bind. They are, but, persuasive and as a result of the common supreme court, there is a great extent of intermingling. The doctrine of precedent is dependent upon two things, which are the existence of the court hierarchy and the system of law reporting. This existence and adherence to this doctrine is clearly described as follows:

“Only two things can be stated with some certainty. First, that the judiciary has maintained a relatively strict adherence to the doctrine of precedent from the nineteenth century onwards and this coincided with a regularization of law reporting. Secondly, that whilst all legal systems have some concept of precedent, the English legal system is exceptional because of its strict adherence to the doctrine of precedent.”

In the light of these statements above, question to ask is whether strict adherence to precedents is always good. Devlin states that judicial craftsmanship involves proper handling of precedent. It is for a judge to learn the ways to use it and particularly to identify rare occasions where they can use it. Precedent occupies a critical position while determining a framework for a judge’s reasoning. It may influence selection of important or unimportant facts, define issues in a case, and identify relevant features, without which a judge might have defined the issues or selected features differently. However, the importance of precedent does not shadow the possibility of erroneous judgments. While determining whether a decision is right or wrong or whether it reflect disputing parties’ expectation or social consensus, a judge may be opened to vulnerability and may commit some mistakes in interpreting laws, particularly which are unarticulated law. Issue, thus, arises when a judge does not have any mechanism to receive feedback on their interpretation of laws. Reading these issues with the strict adherence to precedent, errors in decision may occur causing path-dependency effects, which build upon each other and ultimately affecting the legal framework. For example, the system of precedent may be found limiting in flexibility as lower courts have to follow decisions of senior courts. There are other concerns as well that demonstrate arguments from precedent may fail. The present case may not truly resemble with the precedent in the ways that arguments claim. They may also differ in important respects, which justify in distinguishing the precedent. Even more, a stronger precedent may conflict with the precedent in the current argument. This was seen in Purdy in reference to Pretty where the court discussed exceptionality necessary to deviate from a precedent. However, this cannot take away the fact that this system itself allows a certain degree of flexibility permitting judges to distinguish cases based on their facts. It brings more transparent decisions and objectively acceptable legal rules. In a way it facilitates growth of an area of law by adapting to new social norms. The biggest advantage of the system of precedent is represented as follows:

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1. A F Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93.
2. Sharon Hanson, Learning Legal Skills and Reasoning (4th edn, Routledge 2015).
3. A F Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93.
4. D. Neil MacCormick and Robert S. Summers, Interpreting statutes: a comparative study (Routledge 2016).
5. Sharon Hanson, Learning Legal Skills and Reasoning (4th edn, Routledge 2015).
6. Ibid.
7. Patrick Devlin, The Judge (Oxford University Press 1979) 201.
8. Edward Wilfrid Thomas, The judicial process: realism, pragmatism, practical reasoning and principles (Cambridge University Press 2005) 152.
9. Edward Stringham, Private governance: Creating order in economic and social life (Oxford University Press 2015).

“This system allows “original precedents” to be created to deal with difficult new legal dilemmas. Famous examples of such cases include Airedale NHA Trust v Bland (1993) on the question of whether a life support machine should be switched off when a person was in a persistent vegetative state (it could); and the case of In Re A (2000) on the question of whether Siamese twins should be separated by an operation when the hospital recommended this, but where the parents had clearly expressed their opposition (separation allowed).”

Judges in all courts except the House of Lords are bound by precedents laid down by higher courts. The Court of Appeal is also bound by its own precedents. In all the UK jurisdictions, a plurality of published forms of law reports exists. Decision per incuriam where the court was in ignorance of statute law or relevant precedent makes a precedent loses its normal force. As per the traditional doctrine of precedent, a binding precedent is binding only as to its ratio decidendi, which is its 'rule of decision'. However, whether there is a need to achieve a balance between adherence to precedent and flexibility necessary to tackle cases in newer contexts as no two cases will be the same. This need to change with modern time or cases with newer contexts creates concerns around judicial activism. Judicial activism generally involves a deviation from established laws. The High Court adopts a flexible approach with respect to adhering to stare decisis. It shows willingness to review old precedents in its objective of achieving coherent rulings, while emphasising on interpreting phrases and words in their context. The case of Thorne v Kennedy exemplifies this position of the High Court.

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10. Andrew Mitchell, AS Law (3rd ed. Routledge-Cavendish 2009) 90.
11. Walter Sinnott-Armstrong and Robert J. Fogelin, Cengage Advantage Books: Understanding Arguments: An Introduction to Informal Logic (Cengage Learning 2014) 361.
12. R (on the application of Purdy) v Director of Public Prosecutions [2009] EWCA Civ 92.; [2009] UKHL 45.
13. R (on the application of Pretty) v Director of Public Prosecutions [2001] UKHL 61; Pretty v United Kingdom (2002) 35 EHHR I.
14. David Hoffman, The Impact of the UK Human Rights Act on Private Law (Cambridge University Press 2011) 105.
15. Andrew Mitchell, AS Law (3rd ed. Routledge-Cavendish 2009) 90.
16. Zenon Bankowski, D. Neil MacCormick and Geoffrey Marshall, ‘Precedent in the United Kingdom’ in D. Neil MacCormick, Robert S. Summers and Arthur L. Goodhart, Interpreting Precedents (Routledge 2016) 315-354.
17. B Dickson, ‘Activism and Restraint within the UK Supreme Court’ (2015) 21 (1) EJoCLI 1.

The case law in the UK is rich, but it has reportedly fewer precedents that may be directly applicable for each contention in question. When a few precedents, each of which has strong force, are cited, it is legally binding, if not overruled or distinguished. But, in cases where there are multiple precedents, judges have wider discretion and thus, this situation creates chances of conflicting precedents. Moreover, if there are many and diverse members in a deciding court, such as the House of Lords with around 10 members, there will be difficulty on achieving a viable system of precedents. The role of correcting legal error in individual case falls on the Supreme Court where selection of case is not permitted and a new precedent is set and it becomes a by-product of the court’s activity. This is where the plausibility of errors in decision comes in effect that may cause path-dependency effects, which in turn affect the legal framework. This is why the statement of Devlin is still applicable in modern time of why judges must have craftsmanship to properly handling of precedent and learn the ways to use it and identify rare occasions where they can use it.

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18. Thorne v Kennedy (2017) 350 ALR1.
19. D. Neil MacCormick and Robert S. Summers, Interpreting statutes: a comparative study (Routledge 2016).

Cases

Airedale National Health Service Trust v Bland [1993] AC 789.

In Re A (Children) (conjoined twins) [2000] 4 All E.R. 961.

R (on the application of Purdy) v Director of Public Prosecutions [2009] EWCA Civ 92.; [2009] UKHL 45.

R (on the application of Pretty) v Director of Public Prosecutions [2001] UKHL 61; Pretty v United Kingdom (2002) 35 EHHR I.

Thorne v Kennedy (2017) 350 ALR1.

Books

Armstrong WS and Robert J. Fogelin, Cengage Advantage Books: Understanding Arguments: An Introduction to Informal Logic (Cengage Learning 2014).

Bankowski Z, D. Neil MacCormick and Geoffrey Marshall, ‘Precedent in the United Kingdom’ in D. Neil MacCormick, Robert S. Summers and Arthur L. Goodhart, Interpreting Precedents (Routledge 2016) 315-354.

Devlin P, The Judge (Oxford University Press 1979).

Hanson S, Learning Legal Skills and Reasoning (4th edn, Routledge 2015).

Hoffman D, The Impact of the UK Human Rights Act on Private Law (Cambridge University Press 2011).

MacCormick DN and Robert S. Summers, Interpreting statutes: a comparative study (Routledge 2016).

Mitchell A, AS Law (3rd ed. Routledge-Cavendish 2009).

Stringham E, Private governance: Creating order in economic and social life (Oxford University Press 2015).

Thomas, EW, The judicial process: realism, pragmatism, practical reasoning and principles (Cambridge University Press 2005)

Journals

Mason A F, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93.

Dickson B, ‘Activism and Restraint within the UK Supreme Court’ (2015) 21 (1) EJoCLI 1.